A Chametz Mashkon/collateral:

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A Chametz Mashkon/collateral:

If a Jewish lender received Chametz as collateral from a Jew who he loaned money to, then he is Biblically considered to be the owner of the Chametz collateral, and must get rid of it before Pesach.[1] If a Jewish lender received Chametz as collateral from a gentile who he loaned money to, then the Chametz is not considered to be owned by him, unless an acquisition and stipulation was already made on the Chametz that it should belong to the Jew from before Pesach.[2] Nonetheless, even in the case that the Mashkon does not belong to the Jew, if the Jewish lender entered the Chametz into his property, and he contains some form of liability over it if it were to get lost or stolen, then he is Biblically obligated to destroy the Chametz before Pesach, as explained in C. Thus, the Chametz collateral that one has of a gentile may only be in one’s possession over Pesach if he is not the legal owner of the Chametz and does not have any liability over it, not even liability due to negligence.[3] If a gentile lender received Chametz as collateral from a Jew who he loaned money to, then the Chametz is considered owned by the Jew, and must be destroyed by him, unless an acquisition and stipulation was already made on the Chametz that it will belong to the gentile from before Pesach, and the Jew holds no liability over it.[4]

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[1] Admur 441:1

The reason: It is learned from a Gzeiras Hakasuv that a Mashkon automatically becomes the property of the lender for all purposes, even if the borrower stipulated at the time of giving it to him that it will only become his if he does not pay back the loan. Therefore, the lender must destroy the Mashkon before Pesach [even though that upon doing so he loses his loan, as explained in chapter 443:8]. [Admur ibid]

[2] Admur 441:10-12

In which circumstances is the collateral considered owned by the Jew? In general, a Mashkon of a gentile is not considered the property of the Jew even if he did an acquisition on the Chametz and brought it into his home. However, if when the gentile delivered the Mashkon to the Jew, he told him that if he does not pay him back by a certain date [after Pesach] then it will retroactively be considered his, then if the Jew did a form of acquisition on the Chametz, it is possible that the Jew will retroactively transgress the owning prohibition. Accordingly, the Jew must destroy it before Pesach. [Admur 441:10] If the Jew did not destroy the Chametz before Pesach and the gentile comes to pay him back with cash for the loan, then the Jew may accept the money and the Chametz may be returned to the gentile, being that the Chametz was never considered to belong to the Jew. [Admur 441:11] The above, however, only applies if the Jew did a form of acquisition on the Chametz Mashkon. If, however, no acquisition was made and the Mashkon remained in the gentile’s house, then even if the gentile told him the above stipulation, the Chametz does not need to be destroyed. The reason for this is because without a form of acquisition, the Chametz cannot retroactively transfer to the Jews ownership, as by a gentile, the giving of money alone does not suffice to make an acquisition. [Admur 441:12]

[3] Admur 441:14 [Vetzaruch Iyun how this does not contradict Admur 441:12]

[4] Admur 441:2

In which circumstances is the collateral considered owned by the Jew? In general, a Mashkon that was give by a Jew to a gentile is considered the property of the Jew even if the gentile did an acquisition on the Chametz and brought it into his home. However, if when the Jew delivered the Mashkon to the gentile, he told him that if he does not pay him back by a certain date [after Pesach] then it will retroactively be considered his, then if the gentile did a form of acquisition on the Chametz, and the Jew does not plan to pay back the gentile, then he is not obligated to destroy it before Pesach. [Admur 441:2] If after Pesach the Jew did pay back the gentile, then he is considered to have retroactively owned the Chametz during Pesach and it is forbidden in benefit. [Admur 441:3] If the Jew did not make the above stipulation that the Chametz would retroactively belong to the gentile if he does not pay him by the set date, then the Chametz is considered the Jew’s, and must be destroyed by him before Pesach. This applies even if the due date arrived before Pesach, so long as the gentile has yet to make an acquisition on the Chametz. [See Admur 441:4-7 for a dispute on this matter in a case that the Mashkon is of equal worth to the loan]

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